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IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD 0.A.No.

1051 of 2010 Date of order : Between:

3C

-03-2012

P.Vigneshwar Raju. sib P.V.R.N.Raju occ:Inspector, r/o H.No.2-3-919, Piot No.8, Road No.1, Arunodayanagar, Nagole, Hyderabad. G VIjay Raghavan, sio G.Namdev Goud: occ:Inspector, rio 403, Raghavadendra Royal Fort Apts., Street No.II, Himayatnagar, Hyderabad. G.Venkat Raghavan, sjo G.Namdev Goud, occ:inspector, r/o H.No.5-6-500. Pragathinagar, behind ;dotal Kapila, Nizamabad-503 003. B.R.amakrisnna, slo Subba Rao, co:Inspector, rio H.No.4-6-361,' Plot No.71, MIG Phase IV, Vanasthali Purarn, H y derabad-500 070. M.Narayana Chary, sio MVN.Chary, occ:Supdt., r/o H.No.19-168/23. Road No.15, Dinakar Nagar, West Venkatapuram, Secunderabad. V.Bhaskara Chary ; s/c Laxmikantha Rao, occ:Inspector, r/o H.No.1-1-362, RBI Colony, Mohan Nagar, Kothapet, Hyderabad 7 Chitta Sridev Kumar. sic C.Gokhale, occ:Inspector. rlo 201, Srinivasa Apts. Humayunnagar, Hyderabad-28. 3 C.Sridhara Murthy, s/c Bhanu Murthy, occ:inspector, r/o 104. Keerthi Apts., Vinay Nagar Colony, Saidabad, Hyderabad-39.
9. Donthi Reddy Chenna Reddy, si`o Masthan Reddy,

coo:inspector, r/o Plot No.605. Bhagat Singh Nagar, beside Vasanthnagar Colony, Kukatpally, Hyderabad-85.

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10.Rayudu Rama Mohana Rao, s/o Manikyam, occ:Supdt. Rio Plot No.71, Anand Nagar Colony, New Bovvenpally , Secunderabad. 11.C.S.Srinivas, sio C.Seetharamaiah, occ:Inspector, rib Flat No.307, L.V.Towers, Maruthinaaar, Dilsukhnagar, Hyderabad. 12.V.Vidya Sagar, sio V.R.S.Raju, occ:lnspector, r/o H.No.1-4-476, Old Aiwa!, Secunderabad-10. 13.S.Satyanarayana Sastry, s/o S. Rama Rao, occ:lnspector, r/o D.No.8-12-44/21, Nehru Nagar, 8' Lane. Guntur. 14.Nookala Ramakrishna, s/o Venkata RamanaSastry, occ:Inspector, rio Flat No.203, C.R.Towers, Gandhi Puram-1, near 'Y' Junction, Rajahmundry533 103. AND The Government of India, Mb Finance, Dept. of Expenditure, North Block, New Delhi, rep., by its Secretary, Expenditure. The Government of India, Mk) Finance; Dept. of Revenue, Central Board of Customs and Central Excise, North Block, New Delhi, rep., by its Deputy Secretary/Under Secretary. Central Board of Customs and Central Excise, North Block, New Delhi, rep., by its Chairman and Spl. Secretary. Chief Commissioner of Customs, Central Excise & Service Tax, Hyderabad Zone, Kendriya Shulk Bhavan, Basheerbagh, Hyderabad. 5. Chief Commissioner of Customs, Central Excise & Service Tax, Visakhapatnam Zone, Port Area, Visakhapatnam. Counsel for the applicants Counsel for the respondents

Applicants

Respondents

Mr. N.Vijay Mr. G.Jayaprakash Babu, r.CGSC

CORAM: THE HON'BLE MR. JUSTICE P. SWAROOP REDDY, MEMBER (JUDL) THE HON'BLE MR. R. SANTHANAM. MEMBER (ADMN)

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7 0 .3'1

Hor, t)ie. Mr.Justice

D E : S\A'arcob Ready. Member

Tills OA is fed by the applicia-nts ouestioning the proceedings dated der: by the res-,nnii.11- with the ar,provl of the first

_ :esonnaent nonci that non-functio,nal g rade pa v will not be granted ouP-2; Officers. Who have dot grade DaV O f R.s.4,800/- on upgradation under The ACP Scheme, and to set aside the same, and to direct the
i'eSpOrldiltS to grant higher grade pa y of .s.5.4001- with effect, from the

of corrioletion of regular service of four yea rs in the grade pay of Re.7500-12000",

.4.

The facts of the case are as follows.


Th

-1-

:1/4":

0 :.t.; C and

1 4 4., 4 A C 1.k.;

wor

ki ng as inspectors

n the Custc,% rns and Central Excise De p artment. A pOicants 5 and 10 Are

; womna

Superintendents .uvith effect, from 21.6.2007 and 28.12.2007 t

fesnectivelv. The Sixth Central Pa y Commission submitted its report on 24.3.2008 r6.-dating to the structure of emoluments allowances, etn of the Centra; Governme-nt employees. As per Clause (1) of the Resolution of c., vernrrient cf india. the Pay Band-2 is Rs.9300-34800i-. Th e concept of
grade .
;

...rt.-

4 through-

Sixth Central Pay Commission and :)' 2A1 band n Cause (l y) 'I
pay is

-;ne

1...,0

1-0 dependent on

..n esolution, The calculation for fixatin of revised basic {".


tA'i th

provided. ,As
4.,,t7f!

at

/)=,'

dr aw n

on .

2r1,--\ 57.1 -

etk-,'

ay Commsson SCaeS snail be mp.ed by a fac tor of 1 .86 and then

eo k, , !
.

C! n

ewt

1UPAS.M,-" )

1.

an d

1-=-- be1.0C On O

the revised

band The grade pay. as approved b y the Governmen t in the pre-revised pay scale, will be added to fir, pay ;3 U. 1-2

day band

The total of pay in the pay band and grade pay will be the revised basic pay as on 1.1.2006. Clause (x) of the Resolution deals with Group-B cadres. The relevant Clause (x) (e) reads as follows: "Group-B officers of DePartment of Posts, Revenue etc. will be granted grade pay of Rs.5 : 400/- in PB-2 on nonfunctional basis after 4 years of regular service in the grade pay of Rs.4,8001- in PB-2." As per the above clause, Group-B officers of Department of Posts, Revenue etc., will be granted grade pay of Rs.5,400/- in PB-2 on nonfunctional basis after 4 years of regular service in the grade pay of Rs.4.800i- in PB-2. The revised scales of pay, as per the

recommendations of Sixth Central Pay Commission with the corresponding grade pay, was specified in Annexure-I Part-A of the Resolution. At Serial No.15, the grade pay of PB-2 pay band of Rs.9300-34800 is Rs.4800/-. After acceptance of the Sixth Pay Commission report, vide Resolution dated 29.8.2008, the Union of India ; in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Articles 148 of Constitution of India. issued Central Civil Services (Revised Pay) Rules, 2008, which were published as GSR 622 (E) in the Gazette dated 29.8.2008 and the Rules were given retrospective effect from 1.1.2006. On account of the above report of the Sixth Central Pay Commission and subsequent instructions ; a Group-B officer in PB-2 with a grade pay of Rs.4,800/- is entitled for grade pay of Rs.5,400/- on non-functional basis after 4 years of regular service. The enhancement of grade pay is not dependent on the post, but on regular service of 4 years in grade pay of Rs.4,800/- in PB-2. A clarification was issued by the concerned stating that "the Department of Expenditure have now clarified that the 4 years period is to be counted with

4 of 12

V i

t .-nr

.1-.e

_ CV -

1,-,

: :;%.

4 e)roTh:',,

pre-revised

if an officer has completed 4 years on


ive

31._:.006 or earlier. he wi be

the non-functional upgradatior with

effec i from CY .C1.2006. if the officer COrnnIPtes 4 years on the date after
-;

frr'M suc h date


o

e completes 4 years

1.1!

st,k.,

0; r S.

.17

t);.../U-12.00u

lore-

The post of inspector in the Central Excise & Customs, .


,

p .4 V scale o f 1
ay J

inr-nry is Group-B order dated


i.40

rTh

1. 4 t .

4-

e:,

'

11.5.9004,

the

9;:z.,

- :4

of ndi

. unifoml-

the pay scal e of inpeotor of


"P'

;rnr-

- 5-f";../r)-COn.rV-

F5Cr-105n0i-, r'

- ea:_ient
i

the

, . ! 1/!;;! !,...7H

in the Central Exc se and


to

rrn ::,: .c..3

uncle,
rsrst:

V;r4c. S have
-C

rs'

94g

dated

5.4.2009

been re-nlass i fi eti As


,..,

4 ,c
1 Vi .

posts car,...ying crade Pas!

Atv"1,

,
4

;it

44-

,c scale

C;

1...)1

,z9. 01 i r

come under C3rouP-E. The post. of inspector even under the latest ::lassific;ation of posts comes and Group-B. As ins pectors a.nd cidtec" applicants were in the scale of Rs.7500ciiven in tne OA_ The date,s on 'which the.,

I. <:!!it=vct i(

oplicants were placed in grade pay of Rs.4,K0/- as well as completion of


4 y,, ars, as pre-scribed, is aiso furnished by the applicants. According to the

aopile.;ants, as per the Governm e nt cf India Resolution and COS r. R fps 200a the applicants are entitled to non-f;nctional Grade pay of Ps 5 : 00 upon com pletion of 4 years regular service in the grade pay of
Q.r.pf A f . have

"i

of

r.

gown

as DC r th e Resolution Clause tiv) with effect from the dates mentioned in

the OA. The a p plicants have completed 4 years of regular service in the grade pay of Rs.4 800/- and are due for non-functional grade pay of Rs.5,400/- with effect from the dates shown in the OA. But, the
2nd

respondent issued the impugned proceedings dated 16.9.2009 with the approval of the Department of Expenditure. As per Clause (iv), it is observed that non-functional grade pay will not be aranted to such of those Group-B Officers, who have dot grade pay of Rs.4,8001- on upgradation under the ACP Scheme, as the same is contrary to the Government Resolution and CCS (Revised Pay) Rules, 2008 and on account of that, the app:icants are denied the enhanced grade pay of Rs.5 4001- with effect from the dates shown in the OA. The applicants are claiming the same.

0.

The respondents have filed a reply statement inter -alia contending

that the Department of Revenue in consultation with the Department of Expenditure clarified vide Circular dated 16.09.2009, that the grant of higher Grade pay of Rs.5400/- in PB-2 on non-functional basis is not linked to vacancy and may be given retrospectively with effect from 1.1.2006 provided the officers concerned have completed four years of regular service as on 1.1.2006 as Customs Appraiser; Superintendent of Central Excise/Superintend ent of Customs (P) irrespective of the pay scale and in case there is no vioilance proolem. That, it was also clarified that the nonfunctiona l grade pay of Rs 5400/- in PB-2 will not be granted to such of those Group-B officers, who have got the grade pay of Rs.4800/- on upgradat:on under ACP Scheme That, the whole consultation with the competent authority was for deciding the date of grant of non-functional grade pay of Rs.5400/- to the posts of Customs Appraisers/Superintendent
of Central Excise/ Superintendent of Customs

(P) in pursuance of CCS

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RuIes, 2008. That, with regard to The post of Inspector of Central


Excise, the Department of P xpenditure a s

Resolution dated 29.8.2008

st!oulates that ",, louo-B Officers of the De p artment of Posts. Revenue etc.. be granted grade pay of Rs 5400/- FB-2 on functional

basis after four years of reader service in the grade pay of Rs.48001- in and as such, the following provisions were notified under Part 'C' of
. ,

N LIM .

.partrnent of Revenue: 7500-12000 S'000-13500 (after 4 years !PB-2 PB--:

Income Tax Officers Superintendent. .ppraisers etc- (Customs & Central


excise,

7500- 1loop.

;4800
)31,0 7.15.17

That the pre-revised pay scale of the post of Inspectors of Central Excise

as on
oe

.2006 was Rs.6500-200-10500/- corresponding to the grade pay They were granted the pay scale of Rs.7500-12000

corresponding to Rs.48001- under AOP Scheme. As they have not been


promoted to the posts of Customs Appra i ser/Superintendent of Central

xcse/Superintendent of Customs (P), they have not rendered any regular service in the pay scale of Rs.7500-12300/- corresponding to grade pay of Tnerefore. the provisions contained in Department Expenditure's Resolution and COS (RP) Rules are not applicable to the post of Inspector of Central Excise and the benefit of non-functional grade pay of Rs.5400/- after four years of regular service in the grade pay of Rs. 4800/'- cannot be extended to them. As the grade pay of Rs.48001-

under ACP Scheme is granted to the posts of Inspectors on non-functional basis, there is no scope for granting another non-functional grade pay of Rs.5400/- to the Inspectors of Central Excise.

4.

Now, the contention of the applicants is that they are entitled for the

relief claimed, particularly, in view of the decision of the Division Bench of the Hon'ble Madras High Court in W.P .No.13225/2010, which has become final and is in force as the Hon'ble Supreme Court in SLP t C ) appeal No.15627/2011, did not grant stay of the judgment of Madras High Court in W. P. No.13225/2010.

Thus, there is no dispute that the judgment of the Hon'ble Madras High Court in W.P. No.13225/2010, dated 6.9.2010, is in force, though a
Civil Appeal is pending against the same before Hon'ble Supreme Court.

The case of the petitioner in W .P.No.13225/2010 of Madras High Court was that he joined service as Inspector of Central Excise in 1992 and he was in the pre-revised pay scale of Rs. 6500-10500/-, whereas the Superintendent of Central Excise scale of pay was R s.7500-12000/-. That, on implementation of the Sixth Central Pay Commission report, the Inspectors of Central Excise have been placed in the Pay Band-2 with a grade pay of Rs.4200/- and the Superintendents of Central Excise have
been placed

in Pay Band-2 with a grade pay of Rs.4800/- and a grade

pay of Rs.5400/- after a period of four years in the grade pay of Rs.4800/-. That. though the posts of Inspectors of Central Excise, Preventive Officers and Examiners under the Customs carry the same scale and more or less the same level of responsibilities, the person in the post of Inspector of
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Cents a' Excise. who is a direct recruit, gets his first promotion after long period of 16 to 20 years of service, whereas the persons in the cadre of Preventive Officers and Examiners under the Customs Department, get promotion within six to ten years of service in their respective cadres. That, as per the ACP Scheme introduced through Fifth Central Pay Commission, financial upgradation have to be gr6nted after 12 and 24 years of service. On the basis of the above Scheme, the 23d respondent, in the above Writ Petition before the Honble Hiah Court of Madras, issued instructions dated 9.9.2003 and issued an order No.116/2003 granting first financial upgradation to the petitioner, who was granted pay scale of the Superintendent of Central Excise with effect from 1.1.2004 in the pay scale of Rs.7500-250-12000, vide order dated 11.8.2004 of the Assistant Commissioner of Central Excise, Salem. in the above Writ Petition, the case of the petitioner was further that

he

\-!,,te drawina the pay scale of Rs.7500-250-12000/-, which is the scale

of pay of Superintendent of Central Excise, a Group-B post under the Department of Revenue with effect from 1.1.2004. As such, he is entitled to the benefit of upgradation of grade pay of Rs.5400/- with effect from 1.1.2008 as per the Resolution of the Ministry of Finance dated 29.8.2008.

It was contended by the learned learned counsel for the petitioner before the Hon'ble Madras High Court that in the resolution of Ministry of Finance, Department of Expenditure, dated 29.8.2008, the Government agreed to grant pay of Rs.5400/- in Pay Band-2 to Group-B Officers of the Department of Posts, Revenue, after four years of regular service in grade pay of Rs.4800/- and clarification was issued by the Central Board of Excise and Customs dated 21.11.2008 that the four years period is to be
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counted with effect from the date on which an officer is placed in the pay scale of Rs.7500-12000,'-. That, the Madras High Court held that the clarification dated 29.8.2008 of the Government of India, would not equate the petitioner therein to the posts viz., Income Tax Officer/Superintendents, Appraisers, etc. though he may be drawing the pay scale attached to the said posts by virtue of grant of ACP and that he would not be entitled for grade pay of Rs.5400/- on the basis that he had completed four years of regular service in the pay scale of Rs.7500-12000/-, and that the same cannot be granted unless the petitioner is promoted and not merely on account of his getting ACP Scheme. In paragraphs 7 and 8 of the order, the Madras High Court observed as follows: "7. We are unable to agree with this clarification

given by the Under Secretary to Government of India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to Government of India, it was clarified as to how the 4 year period is to be counted for the purpose of granting non-functional upgradation to Group-B Officer, i.e. whether the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs.7500-12000 (pre-revised) or with effect from 1.1.2006, i.e. the date on which the recommendation of the 6th CPC came into force. It was clarified that the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs.7500-12000 (pre-revised). 8. Thus, if an officer has completed 4 years on

1.1.2006 or earlier, he will be given the non-functional upg radation with effect from 1.1.2006 and if the officer completes 4 year on a date after 1.1.2006, he will be given non-functional upgradation from such date on which he completes 4 year in the pay scale of Rs.7,500-12,000 (pre10 of 12

revised), since the petitioner admittedly completed 4 year period in the pay scale of Rs.7500-12000 as on 1.1 2008, he is entitled to grade pay of Rs.54001-. In fact ; the Government of India ; having accepted the recommendations of the 6 th Pay Commission, issued a resolution dated 29.8.2008 granting grade pay of Rs.54001- to the Group-B Officers in Pay Band-2 on nonfunctional basis after four years of regular service in the grade pay of Rs. 78001- in Pay Band-2. Therefore, denial of the same benefit to the petitioner based on the clarification issued by the Under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale ; such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal."

Ultimately, the Madras High Court held that the petitioner therein is entitled for grade pay of Rs.5 4100/- with effect from 1.1.2008 i.e., as per the resolution dated 29.8.2010.

a.

The above decision of the Madras High Court is applicable to the

facts of the present case with all force, as here also, the applicants herein have been placed in grade pay of Rs.4300/- and have completed four years in that scale, may be, on account of granting only ACP and not on account of promotion. As such, the OA is liable to he allowed and the applicants shall be granted higher pay scale of Rs.5400/- with effect from their respective dates of completion of regular service of four years in the grade pay of Rs.4800 - (pre-revised scale of Rs.7500-12000/-). As the matter is pending before the Hon'bie Supreme Court, we make it clear that the relief the applicants are getting in this CA shall be automatically subject

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to the decision of the Hon'ble Supreme Court in SLP ( C ) No.15627/2011, even without the present res pondent-department not filing any proceedings in the Hon'ble High Court or Supreme Court.

10. The OA is accordingly allowed. No costs.

.",

01( (ILL.-

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